Zaki Mamman & Ors V Mall. Dan Hajo (2016)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Sokoto Division, hereinafter referred to as the Lower Court, delivered on 28th June 2012. The brief facts of the case that brought about the appeal are supplied immediately below.
As plaintiff, the respondent herein commenced action against the appellants at the upper Sharia Court I Birnin Kebbi claiming possession of the farm lands he inherited from his father. The farm lands in dispute are situate at Karaye district of Kebbi State. At the conclusion of trial, the trial Court rejected the testimonies of the witnesses called by the respondent to prove his case for same were successfully impeached. Instead, the Court preferred the testimonies of the witnesses of the appellant and entered judgment for him.
Dissatisfied, the respondent appealed to the Sharia Court of Appeal which, on dismissing the appeal, affirmed the trial Court’s judgment. Respondent’s further appeal on three grounds vide his Notice of appeal filed on 15th September 2011 to the Court of Appeal, succeeded. In allowing the appeal, the
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Lower Court at pages 64 – 67 of the record of Appeal concluded as follows:-
“…On the whole, the instant appeal succeeds only on the ground of want of jurisdiction. The proper Court that has jurisdiction to adjudicate in the matter by hearing and determining same, in my humble view, is the Kebbi State High Court of Justice. Being an appeal heard and determined by the Lower Court without jurisdiction to hear same, the appeal is hereby struck out for want of jurisdiction. As a Corollary, it is hereby remitted to the Kebbi State High Court of Justice to hear and determine it in its appellate jurisdiction same hearing emanated from the Upper Shafia Court No. 1 Birnin Kebbi.”‘
Aggrieved by the foregoing decision, the respondents in that Court have appealed to this Court on an amended Notice of appeal filed on the 28th April 2014 containing four grounds.
At the hearing of the appeal the parties, having identified their briefs including the appellant’s reply brief, adopted and relied on same as their arguments for and against the appeal.
The lone issue distilled by the appellants from their 1st and 4th grounds of appeal reads:-<br< p=””
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“Whether in the entire circumstances of this case, the Court below was not wrong after it had struck out the appeal before the Sharia Court of Appeal of Kebbi State for want of jurisdiction, by thereafter making an order to remit the appeal to the Kebbi State High Court of Justice to hear and determine it in its appellate jurisdiction (Grounds 1 and 4).”
Appellants’ 2nd and 3rd grounds of appeal are deemed abandoned and accordingly struck out.
The not dissimilar issue formulated by the respondent as arising for the determination of the appeal reads:-
“Whether in the entire circumstances of this case, the Court below was right when it made an order remitting the appeal to the Chief Judge of Kebbi State for hearing before the High Court in its appellate jurisdiction having already declared the proceedings before the Sharia Court of Appeal a nullity on grounds of want of jurisdiction and consequently struck out the appeal,(Grounds 1 and 4).”
The appeal will be determined on the basis of the issue of the respondent which explicitly captures the controversy the appeal raises.
On the lone issue, learned appellants’ counsel argues
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that the Lower Court having struck out the appeal before it as same had arisen from the Kebbi State Sharia Court of Appeal that exercised jurisdiction it never had, there was nothing left before the Lower Court to remit to the Kebbi State High Court for further enquiry. The Court’s order consequent upon striking out the appeal before the Sharia Court of Appeal for want of jurisdiction, it is submitted, is of no moment. The order the Lower Court purportedly made apparently pursuant to its powers under Section 15 of the Court of Appeal Act CAP C36, (as amended) Laws of the Federation 2004, learned counsel contends, could only have been properly made in relation to the powers vested in the Sharia Court of Appeal in CAP 133 Laws of Kebbi State 1996. By virtue of Section 14 of the said legislation, the Sharia Court of Appeal from which the appeal determined by the Lower Court emanated, can only remit the matter to the appropriate Court for determination before striking out the appeal before it. The power to remit the case by the Court, it is further contended, lapses on striking out the appeal. The Lower Court, it follows, had wrongly exercised a power does not
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have. The order it made remitting the matter to the Kebbi State High Court, learned counsel urges, on resolving the lone issue against the respondent and allowing the appeal, should be set aside. Learned counsel relies on: Iyaho V. Effiong & Ors (2007) 11 NWLR (Pt.1044) 31 at 37, Waziri & Anor V. Ali & Ors (2009) 4 NWLR (Pt 1130) 178 at 221, The Dagaci of Dere & Ors v. The Dagaci of Ebira & Ors (2006) 7 NWLR (Pt 979) 382 at 434 and ANPP V. Goni & Ors (2012) 7 NWLR (Pt 1298) 147 at 182.
Responding on the lone issue, learned counsel for the respondent contends that the appellants only grouse is on the Lower Court’s order remitting the appeal it had struck out same having been heard by the Kebbi State Sharia Court without the necessary jurisdiction. The appellants, it is contended, are bound by all the crucial findings of the Lower Court they have not appealed against. The respondent as the appellant at the Court below, it is submitted, urged the Court to remit the appeal to the appellate division of the Kebbi State High Court after allowing his appeal and setting aside the judgment of the Sharia Court of Appeal which, inspite of its
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lack of jurisdiction, determined the appeal before it. The Lower Court did exactly as urged. The Lower Court’s order remitting the matter to the State High Court for it to be determined on its merits, after striking out the appeal before it, learned counsel submits, cannot be faulted. It tallies with current practice and has support many in judicial authorities. Learned counsel relies inter-alia to Professor Aderemi Dada Olutola V. University of Ilorin (2004) 18 NWLR (Pt 905) 416 at 459 and Senator Yakubu Garba Lado & Ors v. Congress for Progressive Change (CPC) & Ors (2011) 18 NWLR (Pt 1279)589 at 730.
Lastly, learned counsel contends that Section 15 of the Court of Appeal Act (as amended) 2004 empowers the Lower Court to make the order it made and having acted within the jurisdiction thereunder conferred on it, the Court’s decision endures. Counsel further relies on Safiya Korau V. Bazai Korau (1998) 4 NWLR (Pt 545) 212 and Alhaji Hassan Abuja V. Lawan Gana Bizi (1989) 5 NWLR (Pt 119) 120. The powers of the Lower Court, further argues counsel, goes beyond the powers the Sharia Court of Appeal may exercise pursuant to Section 14 of the Sharia
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Court of Appeal Law CAP 133 Laws of Kebbi State 1996. The facts and circumstances of the instant case, learned counsel concludes, make the Lower Court’s invocation of its powers under Section 15 of the Court of Appeal Act not only desirable but necessary. Relying on Iliya Akwai Lagga V. Audu Yusuf Sarhuna (2008) 16 NWLR (1114) 427 at 482. Learned counsel urges the resolution of the lone issue against the appellant and in doing so dismissing the appeal.
My lords, it is not the contention of any of the parties to this appeal that the Lower Court lacked the jurisdiction of hearing and determining the appeal against the judgment of the Kebbi State Sharia Court of Appeal instantly further appealed against. Such a contention would have been puerile and degrading in the light of the clear and unambiguous words that make up Section 240 of the 1999 Constitution (as amended) which provides:-
“240 -Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the ….. Sharia Court of Appeal of a State…”
Before us, the narrow issue in
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controversy between the parties pertains to the Lower Court’s order remitting the case to the Kebbi State High Court that has the necessary jurisdiction to determine the appeal from the Sharia Court I in the first place. Certainly, the appellants would have been better informed on the utility of the instant appeal if their counsel had further adverted his mind to Section 244 of the very 1999 Constitution which, beyond creating their right of appeal, also provides for the procedure to govern how the Court of Appeal proceeds on such appeals. The Section provides:-
“244.-(1) An appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings, before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide.
(2) Any right of appeal to the Court of Appeal from the decisions of a Sharia Court of Appeal conferred by this Section shall be –
(a) exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest
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in the matter; and
(b) exercised in accordance with an Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
(Underlining mine for emphasis)
Pursuant to Section 244 (2) (b) supra, Section 15 of the Court of Appeal ACT (as amended) 2004 and Order 3 Rule 23 of the Court of Appeal Rules have been put in place by the National Assembly and the President of the Court of Appeal respectively. In Falomo v. Bamigbe (1998) 7 NWLR (Pt 557) 679 at 701 this Court in dwelling on the two provisions stated as follows:-
“In the first place, there is Section 16 of the Court of Appeal Act, 1976 which empowers the Court of Appeal to exercise full jurisdiction over all matters before it and may, inter alia, remit a case to the Court below for the purpose of rehearing or may give such other directions as to the manner in which the Court below shall deal with the case, or in case of an appeal from the Court below in that Courts appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction. See Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523 at 530
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E-G; Igboho, Irepo L.G.A. and Anor v. The Boundary Settlement Commissioner (1988) 2 S.C.N.J. 28; (1988) 1 NWLR (Pt. 69) 189 etc.
There is also the provision of Order 3 Rule 23 of the Court of Appeal Rules,1981 which, inter alia, empowers the Court of Appeal to give any judgment or make such further or other order as a case may require. There powers are exercisable by the Court in favour of all or any of the parties although such parties may not have appealed from or complained of the decision.” (Underlining mine for emphasis).
In the case at hand, the consequential order remitting the matter to the appropriate Court for same to be determined on the merits falls squarely within the Lower Court’s powers as statutorily conferred. One is unable to agree with learned counsel to the appellants that because the Sharia Court of Appeal which entertained the appeal earlier without the necessary jurisdiction could only make the order of transfer before striking out an appeal, the Lower Court is equally without power to make the transfer after it had struck out the appeal. Learned counsel certainly underestimates the extent of the powers of the Lower
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Court by virtue of Section 15 of the Court of Appeal Act and Order 3 Rule 23 of the Court of Appeal Rules.
The various pronouncements of this very Court on the two provisions are still extant.
It is for all these that I resolve the lone issue in the appeal against the appellants. Their unmeritorious appeal is dismissed. Parties are to bear their respective costs.
SC.202/2014